A recent labour court ruling recognised the vulnerability of workers in temporary employment as the "weakest and most vulnerable" in the triangular relationship encompassing the worker, the labour broker and its client.

It held that arbitrators and courts should not take all labour broking arrangements as "presumptively valid on face value as soon as a signed contract is put up by an employer".

Regulating the labour broking environment has seen an emotional response from all quarters, with business and opposition parties warning that the changes would result in job losses, and the Congress of South African Trade Unions (Cosatu) calling for an outright ban of the practice.

But at the end of last month, the Labour Court in Cape Town handed down a judgment that showed an increasing willingness by the court to go beyond the "contractual relationship" between an employee and a labour broker.

The case involved an employee of the paper giant Mondi, who was hired by the company, but was told to sign a contract with a labour broker after two years, which he did. The employee, Khululekile Dyokwe, continued to work for Mondi for five and a half years and was then dismissed.

He referred the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) to determine who his true employer was at the time of his dismissal.

The CCMA found that the employer was the labour broker, Adecco, who after Mr Dyokwe's dismissal from Mondi told him he was too old for the company to place him in other employment.

He then took the matter to the Labour Court for review.

The Labour Court found that Mondi was the employer, and set aside the CCMA's earlier decision. The CCMA was also ordered to arbitrate the dismissal of Mr Dyokwe between him and Mondi.

A CCMA spokeswoman said on Monday the matter was set down for arbitration next month.

Imraan Mahomed, labour director at attorneys Eversheds, says the judgment shows the courts are prepared to come to the assistance of employees in the tripartite relationship and that they are prepared to "make every effort to afford labour protection" to vulnerable workers. He says the judgment sends a "strong signal" to labour brokers and their clients to make sure their relationships are "properly ordered in terms of the law". "If not, the client will face unfair dismissal and other forms of employment related liability," he says.

Audrey Johnson, senior associate at law firm Edward Nathan Sonnenbergs says that the importance of the judgment is in its view of the matter "beyond the contractual relationship".

Cosatu's parliamentary officer, Prakashnee Govender, says the case goes to the "heart" of how labour brokers work. She says they create "legal fictitious employment" which places a "wedge" between the workers and their "true employer", which in turn affects the workers' ability to assert their rights and reduces the "quality" of their employment.

Ms Johnson says this particular case shows that the transfer of employment to the labour broker is a "sham".

Department of Labour director for collective bargaining Thembinkosi Mkalipi, responding to the judgment on Monday, said it "confirmed" the department's intentions in terms of the proposed labour amendments before Parliament and once the amendments took effect, workers would be able to rely on existing legislation for protection without taking the matter to court. He said the department would like the amendments to be finalised as soon as possible.

Natasha Marrian

Business Day